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1, Page 1 of 61

No. 23-03194

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID JESS MILLER,

Defendant-Appellant.

ANSWERING BRIEF FOR THE UNITED STATES AS APPELLEE

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA
NOS. 3:15-CR-0234-CRB; 3:16-CR-0225-CRB

ISMAIL J. RAMSEY
United States Attorney

MERRY JEAN CHAN

Chief, Appellate Section, Criminal Division

ANDREW F. DAWSON
CHRIS KALTSAS
Assistant United States Attorneys

450 Golden Gate Avenue, 11th Floor

San Francisco, CA 94102
(415) 436-7200

Attorneys for Plaintiff-Appellee

May 17, 2024 UNITED STATES OF AMERICA
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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

JURISDICTION, TIMELINESS, AND BAIL STATUS ..........................................2

ISSUES PRESENTED...............................................................................................4

STATEMENT OF THE CASE ..................................................................................5

A. Trial evidence .............................................................................................5

1. Miller’s appearance of corporate legitimacy ...................................5

2. State and federal regulations helped ensure the safety of

prescription drugs distributed to pharmacies ...................................6

3. Miller’s scheme was designed to trick pharmacies and patients

into believing they were buying prescription drugs that had been
safeguarded by the protections of the regulated supply chain .........8

4. Miller’s victims would not have knowingly purchased diverted

drugs because of the risks those drugs pose to patients’ health .....12

5. Miller was a member of a criminal enterprise ...............................14

B. Conviction, post-trial motions, and sentencing........................................16

SUMMARY OF ARGUMENT ...............................................................................17

ARGUMENT ...........................................................................................................19

I. THE EVIDENCE BEFORE THE JURY WAS SUFFICIENT TO CONVICT

MILLER OF EACH OF THE MAIL AND WIRE FRAUD OFFENSES
ALLEGED IN THE INDICTMENT ................................................................19

A. Standard of review ...................................................................................19

B. Miller intended to defraud pharmacists of a traditional property

interest—money .......................................................................................19

1. “Right to information” cases have no bearing on this simple

property fraud case .........................................................................20

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2. The evidence pertaining to the RICO conspiracy and money

laundering conspiracy counts supports Miller’s convictions .........26

II. THE DISTRICT COURT CHARGED THE JURY WITH APPROPRIATE

INSTRUCTIONS THAT CORRECTLY STATED THE LAW ......................26

A. Background ..............................................................................................27

B. Standard of review ...................................................................................27

C. Miller’s proposed instructions on intent and “purpose to harm” were

improper ...................................................................................................28

1. The “object” element......................................................................29

2. The “intent” element ......................................................................30

D. Miller asked the district court to create a new, unsupported “benefit

of the bargain” requirement .....................................................................32

E. The “money and property” instruction that Miller requested

mischaracterized the nature of the scheme and would have confused
the jury......................................................................................................35

F. This Court has approved the district court’s materiality instruction,

and Miller’s proposed revision was unsupported ....................................38

III. THE EVIDENCE AT TRIAL ESTABLISHED THAT MILLER

CONSPIRED TO COMMIT RACKETEERING ACTS AS PART OF
THE ENTERPRISE CHARGED IN THE INDICTMENT..............................39

A. Standards of review ..................................................................................40

B. The record overwhelmingly proves the existence of the enterprise

charged in the indictment .........................................................................40

C. The government’s closing argument did not constructively amend

the second superseding indictment ..........................................................48

CONCLUSION ........................................................................................................53

STATEMENT OF RELATED CASES ...................................................................54

CERTIFICATE OF COMPLIANCE .......................................................................55

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TABLE OF AUTHORITIES

Federal Cases

Boyle v. United States, 556 U.S. 938 (2009) .................................................... 41, 46

Carpenter v. United States, 484 U.S. 19 (1987) ......................................................23

Ciminelli v. United States, 598 U.S. 306 (2023)....................... 17, 20, 23, 36, 38–39

Cleveland v. United States, 531 U.S. 12 (2000) ............................................... 23–25

Jackson v. Virginia, 443 U.S. 307 (1979) ......................................................... 19, 40

Kelly v. United States, 140 S. Ct. 1565 (2020) ................................................. 23, 25

McNally v. United States, 483 U.S. 350 (1987)................................................ 23–25

Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir. 2007) (en banc) .........................41

Pasquantino v. United States, 544 U.S. 349 (2005) ......................................... 23–24

Shaw v. United States, 580 U.S. 63 (2016) ................................................. 24–25, 30

United States v. Adamson, 291 F.3d 606 (9th Cir. 2002) ................................. 40, 49

United States v. Anguiano-Morfin, 713 F.3d 1208 (9th Cir. 2013) .........................28

United States v. Benny, 786 F.2d 1410 (9th Cir. 1986) .................................... 24, 30

United States v. Bhagat, 436 F.3d 1140 (9th Cir. 2006) .........................................48

United States v. Bruchhausen, 977 F.2d 464 (9th Cir. 1992) ..................... 20–25, 37

United States v. Christensen, 828 F.3d 763 (9th Cir. 2015) ............................. 41, 47

United States v. Davis, 854 F.3d 601 (9th Cir. 2017) ..............................................40

United States v. Eufrasio, 935 F.2d 553 (3d Cir. 1991) ..........................................47

United States v. Fernandez, 388 F.2d 1199 (9th Cir. 2004) ....................................47

United States v. Garcia, 729 F.3d 1171 (9th Cir. 2013) ..........................................27

United States v. Guertin, 67 F.4th 445 (D.C. Cir. 2023) .................................. 32–34

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United States v. Hayes, 794 F.2d 1348 (9th Cir. 1986) ...........................................28

United States v. Heredia, 483 F.3d 913 (9th Cir. 2007) (en banc) ..........................27

United States v. Holden, 908 F.3d 395 (9th Cir. 2018) ...........................................29

United States v. Hsiung, 778 F.3d 738 (9th Cir. 2015) .................................... 48, 52

United States v. Lindsay, 850 F.3d 1009 (9th Cir. 2017) ........................................38

United States v. Luong, 965 F.3d 973 (9th Cir. 2020) .............................................48

United States v. Marguet-Pillado, 648 F.3d 1001 (9th Cir. 2011) ............. 27–28, 38

United States v. Miller, 953 F.3d 1095 (9th Cir. 2020) .................................... 30–31

United States v. Molinaro, 11 F.3d 853 (9th Cir. 1993) ............................. 24, 30–31

United States v. Nevils, 598 F.3d 1158 (9th Cir. 2010) (en banc) .................... 19, 40

United States v. Ryan, 283 F. App’x 479 (9th Cir. 2008)........................................52

United States v. Sadler, 750 F.3d 585 (6th Cir. 2014)...................................... 21–24

United States v. Shellef, 507 F.3d 82 (2d Cir. 2007) ........................................ 34–35

United States v. Takhalov, 827 F.3d 1307 (11th Cir. 2016) ............................. 32–34

United States v. Weissman, 899 F.2d 1111 (11th Cir. 1990) ............................ 51–52

United States v. Woods, 335 F.3d 993 (9th Cir. 2003) ............................................29

Federal Statutes

18 U.S.C. § 1341 ........................................................................................................2

18 U.S.C. § 1349 ........................................................................................................2

18 U.S.C. § 1956(h) ...................................................................................................2

18 U.S.C. § 1961(4) .................................................................................................40

18 U.S.C. § 1962(d) ............................................................................................ 2, 39

18 U.S.C. § 3231 ........................................................................................................2

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28 U.S.C. § 1291 ........................................................................................................3

Federal Rules

Fed. R. App. P. 4(b)(1)(A)(1) ....................................................................................3

Fed. R. Crim. P. 21(b) ................................................................................................2

Fed. R. Crim. P. 29...................................................................................................16

Fed. R. Crim. P. 33...................................................................................................16

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No. 23-03194

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID MILLER,

Defendant-Appellant.

ANSWERING BRIEF FOR THE UNITED STATES AS APPELLEE

Defendant-Appellant David Miller appeals his convictions following a jury

trial. The evidence was sufficient to establish the RICO conspiracy, and the wire

and mail fraud counts. The jury was properly instructed. And there was no

constructive amendment or prejudicial variance. This Court should affirm.

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JURISDICTION, TIMELINESS, AND BAIL STATUS

The district court (Hon. Charles R. Breyer) had jurisdiction under 18 U.S.C.

§ 3231.

After a nearly three-week trial, a jury convicted Miller of 14 counts

consisting of Count One, Four, and Five of the second superseding indictment in

Case No. 15-cr-234 (CR1-163, 502, 1839), and Counts Two through Eleven and

Count Twelve of the indictment in Case No. 16-cr-255 (225-CR-1, 117), which

was transferred from the Southern District of Ohio for trial under Fed. R. Crim. P.

21(b). CR-1839; 225-CR-117; 2-ER-303–08.

From Case No. 15-cr-234, Miller was convicted of one count of racketeering

conspiracy, in violation of 18 U.S.C. § 1962(d) (Count One); one count of

conspiracy to commit mail, wire, and bank fraud, in violation of 18 U.S.C. § 1349

(Count Four); and one count of conspiracy to commit money laundering, in

violation of 18 U.S.C. § 1956(h) (Count Five). CR-2110.

From Case No. 16-cr-225, Miller was convicted of ten counts of mail fraud,

in violation of 18 U.S.C. § 1341 (Counts Two through Eleven); and one count of

1
“CR” refers to the clerk’s record in district court Case No. 3:15-cr-234-CRB;
“225-CR” refers to the clerk’s record for district court Case No. 3:16-cr-225-CRB,
in which Miller and co-defendants were indicted in the Southern District of Ohio,
but venue was transferred to the Northern District of California. “ER” refers to
Miller’s Excerpts of Record, “AOB” refers to Miller’s Opening Brief as Appellant,
and “SER” refers to the government’s Supplemental Excerpts of Record.

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conspiracy to commit unlicensed wholesale distribution and false statements

(Count Twelve).2

The original judgments were entered on October 31, 2023. CR-2069; 225-

CR-149. Miller filed timely notices of appeal that same day. 11-ER-2358; CR-

2072; CR-2074 (C.A. No. 23-3194); 225-CR-153; Fed. R. App. P. 4(b)(1)(A)(1) &

(2). An amended judgment listing forfeiture amounts was filed on January 23,

2024. CR-2120; see also CR-2118 (amended judgment, Jan. 22, 2024). This

Court has jurisdiction under 28 U.S.C. § 1291.

Miller is in custody, with a projected release date of March 15, 2029.

http://bop.gov/inmateloc/ (Register No. 62222-112).

2
This brief refers to Miller’s conviction of twelve counts of mail, wire, and bank
fraud conspiracy; mail fraud; and RICO conspiracy predicated on the
aforementioned mail and wire fraud offenses, collectively as “mail and wire
fraud.”

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ISSUES PRESENTED

1. Whether, for purposes of Miller’s Racketeer Influenced and Corrupt

Organizations Act (“RICO”) conspiracy, mail fraud, and wire fraud convictions,

there was sufficient evidence for the jury to find that he intended to defraud his

victims by representing that the prescription drugs he sold had traveled in a safe,

regulated stream of commerce when, in reality, they were diverted drugs obtained

from street sources and posed undisclosed risks to the health of downstream

patients.

2. Whether the district court erred by refusing to give jury instructions

that inaccurately stated the law with respect to several elements of the mail and

wire fraud statutes, including their attendant intent requirements, scheme to

defraud requirements, and materiality standards.

3. Whether the government’s focus on Miller’s role in a racketeering

enterprise during his trial, as opposed to the roles of other defendants not on trial,

constituted a constructive amendment of the second superseding indictment’s3

RICO conspiracy allegations.

3
For ease of reference, and because the differences between the indictments in
Case Nos. 15-cr-234 and 16-cr-225, which were consolidated for trial, are
immaterial for purposes of the issues on appeal, this brief generally refers to the
“indictment,” in the singular.

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STATEMENT OF THE CASE

A. Trial evidence

1. Miller’s appearance of corporate legitimacy

Miller was the majority owner and operator of Minnesota Independent

Cooperative (“MIC”), a wholesale company that distributed prescription drugs to

pharmacies throughout the United States. 4-ER-721. MIC specialized in the sale

of expensive brand name drugs, such as drugs used to treat Human

Immunodeficiency Virus (“HIV”), severe psychiatric conditions, and other

ailments, and it was licensed as a wholesaler in various states. 4-ER-722, 4-ER-

724, 4-ER-735–46. Miller served in several corporate roles for MIC, holding

himself out as the entity’s attorney, its owner, and its manager, all while meeting

with clients and directing marketing efforts. 4-ER-725. Evidence at trial

established that Miller and MIC held themselves out as “a national, pharmaceutical

wholesaler specializing in the distribution of branded pharmaceuticals to

independent pharmacies.” 3-SER-548. MIC claimed that its low prices were the

result of “different strategies including premier sourcing, low overhead, bulk

buying power and strict inventory control.” Id. As explained in more depth below,

this was a lie. MIC’s pricing was low because it was re-selling diverted

prescription drugs obtained from street suppliers.

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2. State and federal regulations helped ensure the safety of

prescription drugs distributed to pharmacies

At the time that Miller and MIC sold drugs to pharmacies, they were

required by federal law to produce documentation accompanying each sale that

provided details about the drugs. This documentation was referred to as the drugs’

“pedigrees.” Pedigrees documented the movement of each unit through a tightly

controlled and highly regulated stream of commerce. 3-ER-559–61; 7-ER-1461–

78; see also 4-SER-798, 4-SER-820 (diagram establishing the general framework

of pharmaceutical sales and transmission at the time of MIC’s sales to pharmacies).

In particular, the statutes in place at the time required a wholesaler like MIC to

provide pedigrees for each unit of prescription drugs that traced prior sales of that

unit back to either the manufacturer itself or to an “authorized distributor.” 7-ER-

1470–73 (expert testimony of Karen Rothschild). The purpose of the pedigree is to

help “make sure that once the drug gets to a patient,” that it “is the drug that we

expect it to be, and it’s going to be effective and it’s going to be safe.” 7-ER-1470.

The term “authorized distributor,” in turn, was a term of art referring to a business

that had a contractual relationship with the manufacturer of a prescription drug and

can purchase that drug directly from the manufacturer. ER-1464–65.

That stream of commerce, documented by pedigrees, was meant to ensure

the safety and efficacy of the prescription drugs that were eventually distributed to

patients. 7-ER-1462–69; see also 4-SER-820. This tightly regulated supply chain

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helped ensure that drugs distributed to patients were indeed the appropriate drugs,

that they had been stored appropriately to maintain efficacy, and had been handled

only by licensed (and thus trained and regulated) parties. 7-ER-1476.

In addition to federal regulations, each state regulated the operation of

prescription drug wholesalers within its borders. See 6-ER-1225; 7-ER-1466–70.

At trial, Dr. Michael Ignacio testified about the various regulations imposed by the

State of California for the purpose of ensuring the safety of prescription drugs

dispensed to Californians. 6-ER-1213. In particular, he explained that licensure in

California requires a wholesaler to have “humidity, temperature control, specific

security, surveillance cameras, [and] adequate lighting . . . to ensure that [the

medications are] kept properly.” Id. Dr. Ignacio further explained that certain

medications must be stored in appropriate conditions in order to maintain their

efficacy. Id.; see also 7-ER-1469 (wholesaler facilities must “be monitored for

temperature, because a lot of drugs need to be kept in certain conditions or

humidity).” The California Board of Pharmacy also conducted inspections of

licensed wholesalers and gathered background information, including criminal

histories and/or prior disciplinary actions, about applicants before granting a

license. 6-ER-1219. Dr. Ignacio specifically testified that California’s regulatory

regime was intended, in part, to prevent drug diversion. 6-ER-1222. “[E]nsuring

that Californians get the proper medication at the appropriate times is of utmost

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important and ensuring that drug diversion doesn’t occur helps to maintain that.”

Id.

3. Miller’s scheme was designed to trick pharmacies and patients

into believing they were buying prescription drugs that had
been safeguarded by the protections of the regulated supply
chain

Miller and his co-conspirators designed a system to evade this regulatory

scheme, which undermined the safety of the prescription drug supply chain. The

drugs MIC sold had been “diverted,” meaning that they had not been purchased

through those regulated channels. Rather than buying wholesale drugs from

licensed sellers that were protected by the regulatory regime, Miller and MIC

obtained the drugs they sold from unlicensed suppliers who were themselves

sourcing their drugs from unlicensed street sources. Those sources included, for

example, patients selling their prescriptions to street dealers, individuals with

access to stolen drugs, and black-market pharmacies, among others. See, e.g., 3-

ER-635–36 (testimony from Peter Kats describing some of his sources of drugs,

which he subsequently sold to Miller). The evidence at trial established that Miller

knew that his drugs did not come from the regulated supply chain and that he

actively sought to obscure the drugs’ true sources from his customers, primarily by

generating and transmitting fraudulent pedigrees to his customers. See, e.g., 4-ER-

584–86 (testimony indicating that Miller instructed his suppliers to produce

documentation indicating that drugs had been provided by a legitimate wholesaler,

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when Miller knew that the wholesaler was not the true source of the drugs); 8-ER-

1582–86 & 3-SER-608 (testimony from Yusef Yassin Gomez (“Yassin”), the

purported owner and operator of B&Y, explaining that he “did whatever David

Miller asked [him] to do,” including falsely stating that B&Y was an authorized

distributor for the drugs MIC sold to pharmacies).

Miller and his associates operated in a manner that undermined the various

safety measures imposed by federal and state law to protect patients. During trial,

witnesses testified that the drugs in question were stored in improper and

unregulated locations, including in a restaurant near hot pizza ovens, in vehicles,

and in other locations without climate control, secured access, or other important

means of ensuring the efficacy of drugs. 6-ER-1078–89; 7-ER-1410–18; see also

4-SER-713. In several cases, the bottles MIC sold to pharmacies contained the

incorrect dosage of medication or the wrong medication altogether, exposing

unwitting patients to grave health risks. See, e.g., 3-ER-523–27 (wrong dosage of

antipsychotic medication in sealed bottles); 9-ER-1832–34 (same); see also 1-

SER-165, 1-SER-221, 1-SER-230. In some cases, bottles produced by one

prescription drug manufacturer contained drugs from a different manufacturer,

which nearly never occurs outside the context of drug diversion because

manufacturers fill and seal bottles of pharmaceuticals independently of one

another. 4-ER-812–13; 6-ER-1154–57; see also 1-SER-161; 4-SER-802. In

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others, MIC employees discovered multivitamins or ibuprofen inside bottles

supposed to contain high-priced, life-saving prescription drugs. See, e.g., 3-SER-

586 (bottle of HIV medication found to contain Centrum Silver).

From the face of MIC’s pedigrees, victim pharmacists could not tell that

anything was amiss. See 3-ER-533, 3-ER-573; 6-ER-1150–54; 8-ER-1666-67

(pharmacists explaining that they relied on pedigrees to accurately describe and

account for drugs they purchased from MIC and other drug distributors). MIC’s

pedigrees typically claimed that its prescriptions drugs had been sourced from

legitimate authorized distributors, such as B&Y Wholesale Distributors (“B&Y”)

and FMC Distributors (“FMC”), two Puerto Rican entities Miller and MIC claimed

were authorized distributors for the drugs MIC purportedly purchased from them.

4-SER-807–20 (summary exhibit detailing selection of MIC pedigrees). As noted

above, the federal regulation in place at the time required pedigrees to trace prior

sales of a prescription drug back to either the manufacturer itself or to an

authorized distributor. 7-ER-1470–73 (expert testimony of Karen Rothschild). In

so doing, MIC and Miller claimed that their drugs had travelled through regulated

channels and could be trusted to be safe and effective, thus misrepresenting the

risks posed by the drugs. See, e.g., 7-ER-1476 (expert witness explaining that,

with diverted drugs, “we have no way of knowing if it’s safe” or “effective”).

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The reality was far different from what MIC and Miller represented to their

customers in three respects. First, B&Y and FMC were mere shell companies

controlled by Miller set up to further this very scheme. As shell companies, they

never obtained authorized distributor status for any of the drugs they purportedly

sold to MIC. 3-ER-561–83; 8-ER-1733–80; see also 4-SER-807–20. Second, in

several cases, B&Y and FMC never even possessed the products they purportedly

sold to MIC. Yassin, the operator of B&Y, testified that Miller paid him to do

nothing but help move money. 8-ER-1549–641. Indeed, the trial testimony

indicated that B&Y was primarily a corporate vehicle used to launder the proceeds

of MIC’s drug sales to pay its street suppliers. Id.

Third, and most importantly, Miller’s and MIC’s drugs were sourced not

from the safe supply chain, but rather from unlicensed street suppliers across the

United States. There were at least three separate, illicit sources of the prescription

drugs. The primary suppliers were co-defendants Artur and Mihran Stepanyan,

who obtained their drugs from the streets of Southern California and provided

them directly to Miller’s employees.4 4-ER-731 (referring to supplier “Art” and

company “GC National”), 4-ER-733; 5-ER-1034; 6-ER-1090; see also 4-SER-821

4
One of those street sources, Ara Karapedyan, testified at trial and explained that
he stored prescription drugs in the kitchen of a pizza restaurant he operated, in an
office without climate control, and in several locations with no security. See 5-ER-
955–95; 6-ER-1073–89; see also 4-SER-807–20; 4-SER-821.

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(showing that the majority of funds Miller sent to drug suppliers was to companies

held by the Stepanyans, including GC National).

Miller also obtained drugs from co-conspirator Fernando Galan, who

testified at trial and explained that neither he nor his suppliers were ever licensed,

and that he did not even know the true sources of the drugs he passed along to

Miller, only that he believed they originated in Miami. 4-ER 889–91, 4-ER-898–

99. Galan explained that Miller instructed him to create business records falsely

claiming that Galan’s drugs were purchased from licensed sources, even though

both Galan and Miller knew this was not true. 4-ER-901–02. Co-conspirator

David Konigsberg testified that he also sold diverted prescription drugs to Miller

and MIC. 7-ER-1300–02. Konigsberg explained that he obtained prescription

drugs from unlicensed sources in New York and then shipped them to MIC in

Minnesota. 7-ER-1302–04. As with Galan, Konigsberg explained that Miller

instructed him to create false business records indicating that the drugs were

obtained from licensed sources. 7-ER-1307. See also 3-ER-631–58; 4-ER-726–

830, 4-ER-888–920; 7-ER-1405–18.

4. Miller’s victims would not have knowingly purchased diverted

drugs because of the risks those drugs pose to patients’ health

Several of MIC’s and Miller’s customers testified that the accuracy of the

pedigrees was vital because appropriate pedigrees ensured the products they

purchased had passed through the regulated supply chain, and thus could be trusted

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to safe and effective for patients. 3-ER-507–09; 6-ER-1150–52. Several witnesses

testified that, had they known that the companies listed on the pedigrees were not

real authorized distributors and that the drugs actually came from street sources,

they never would have purchased them. 3-ER-507–09, 3-ER-578–82; 6-ER-1150–

52; 9-ER-1839–41; see also 3-ER-508 (pharmacist explaining that “once you get

outside the supply chain and you don’t know where the product is coming from,

the efficacy of a drug, how it’s been stored, it would . . . jeopardize a patient’s

safety”).

Their hesitation is understandable, especially in light of the inevitable result

of Miller’s and MIC’s scheme: on several occasions, bottles dispensed to patients

had the wrong drug inside. In response, drug manufacturers had to issue

nationwide warnings to pharmacists about potentially catastrophic and

unexplainable errors concerning bottles of drugs that MIC sold that had the wrong

drug from a different manufacturer in them. 4-ER-810–15; see also 4-SER-802.

As noted above, in another instance, MIC sent a pharmacy a bottle of drugs

prescribed for the treatment of HIV, which actually contained multivitamins

instead of the drug. See supra at 9-10; 4-ER-803–08; 8-ER-1607–08; see also 3-

SER-586. Even when faced with these incidents, Miller and MIC continued to

accept drugs from the sources of these faulty bottles of drugs and to then sell them

to unwitting pharmacies. 4-ER-810–15.

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5. Miller was a member of a criminal enterprise

As noted supra, Miller was charged with, and ultimately convicted of, RICO

conspiracy. The indictment alleged that Miller worked with a number of

individuals to effect the aforementioned diverted drug scheme, including the

Stepanyans, Karapedyan, several MIC employees (including James Russo, Jeanette

Couch, Bernardo Guillen, Javier Ramirez, and Marie Polichetti), and several

others. See 10-ER-2278. The trial evidence indicated that each of these

individuals worked with one another to ensure that the drug diversion scheme

succeeded. For example, the Stepanyans supplied drugs to Miller through

companies they held, such as GC National. 4-ER-731 (referring to supplier “Art”

and company “GC National”), 4-ER-733; 5-ER-1034. Karapedyan supplied drugs

to the Stepanyans. 6-ER-1089–90. Individuals like Kats would obtain those drugs

from street sources. 4-ER-636.

And to administratively accomplish MIC’s sales to unsuspecting

pharmacies, Russo, Couch, and other MIC employees would organize, market, and

transport the diverted drugs from MIC’s operation centers in California and Puerto

Rico to the MIC’s customers, all with the help of individuals like Yassin at B&Y.

See 4-ER-731–33 (discussing Miller’s suppliers and how they were never placed

on pedigrees sent to pharmacy customers by MIC employees), 4-ER-741–44

(describing the role of B&Y and Yassin in transmitting orders from suppliers like

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Galan and Kats from Puerto Rico to Minnesota prior to shipment of drugs to

pharmacy customers); 4-ER-747–50 (describing the role of Guillen and Ramirez in

quality control for the drugs MIC obtained from their suppliers, as well as the

issues that frequently arose when those drugs were inspected in Minnesota); 4-ER-

764–66 (describing how B&Y was depicted as a purported authorized distributor

for nearly every drug MIC sold for years, despite Russo knowing that they were

not suppliers for the drugs MIC sold); 4-ER-769–70 (describing the MIC

employees, including Couch and Polichetti, who were responsible for generating

pedigrees for MIC’s customers).

At trial, several witnesses testified as to their role in MIC’s success.

Alexander Soliman, for example, testified that he helped Miller access the drug

market when his lack of licensure in California inhibited his sales capabilities. 6-

ER-1242–48. Kats, Galan, and Konigsberg each testified as to how they sold

drugs to Miller. 4-ER-636, 4-ER 889–91, 4-ER-898–99. Galan explained that

Miller instructed him to create business records falsely claiming that Galan’s drugs

were purchased from licensed sources, even though both Galan and Miller knew

this was not true. 4-ER-901–02. Co-conspirator David Konigsberg testified that

he also sold diverted prescription drugs to Miller and MIC. 7-ER-1300–02. Russo

testified as to his efforts at MIC’s warehouse, where he would organize and

prepare the drugs MIC purchased prior to resale to pharmacies across the nation. 4-

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ER-747–50. Miller also specifically told others in the enterprise, like Galan, to lie

about the sources of drugs Miller purchased. 5-ER-901–03. Each of these

witnesses played a role in a large, complicated organization that had the sale of

diverted drugs as its common purpose.

In addition to the drug diversion scheme, the indictment returned in the

Northern District of California referred to two other separate schemes which were

not discussed at Miller’s trial. One of those schemes involved the illicit cashing of

checks obtained as a result of fraudulently filed tax returns and, in some cases,

checks representing the proceeds of Miller’s and MIC’s scheme. 10-ER-2279–81;

10-ER-2287–91. Another of those schemes involved a murder-for-hire plot. 10-

ER–2292. Prior to trial, Miller moved to exclude evidence concerning these other

schemes. CR-1545. Miller’s motion was granted as to the murder for hire. CR-

1687.

B. Conviction, post-trial motions, and sentencing

At the conclusion of the government’s case-in-chief, Miller moved for a

judgment of acquittal pursuant to Fed. R. Crim. P. 29, which the Court took under

submission. 9-ER-1853. Miller later renewed his motion for a judgment of

acquittal and submitted a motion for a new trial pursuant to Fed. R. Crim. P. 33. 1-

SER-2. The court denied that motion on May 2, 2023. 1-ER-25.

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On May 11, 2023, the Supreme Court of the United States issued Ciminelli

v. United States, 598 U.S. 306 (2023). On May 26, 2023, the district court invited

Miller to renew his post-trial motions to address whether Ciminelli had any effect

on his convictions. 2-ER-173. Miller filed renewed motions, which the court

denied. 1-ER-3.

The jury returned verdicts of guilty as to all counts. 9-ER-2035–39. The

district court sentenced Miller to 72 months on each of Counts One, Four, and Five

in Case No. 15-CR-234, as well as Counts Two through Eleven in Case No. 16-

CR-225, and 60 months on Count Twelve in Case No. 16-CR-225, all to be served

concurrently, followed by three years of supervised release on each of Counts One

through Twelve. CR-2060. The court imposed a $250,000 fine, mandatory special

assessment, and forfeiture. 1-ER-16–23.

SUMMARY OF ARGUMENT

1. The district court correctly concluded that the government presented

sufficient evidence at trial to sustain Miller’s convictions for mail and wire fraud.

The evidence at trial established that Miller and his co-conspirators deceived

MIC’s customers and tricked them into purchasing dangerous, unregulated

diverted prescription drugs. Those customers were tricked into believing that

MIC’s drugs had flowed through the safe and regulated supply chain, and they

never would have purchased diverted prescription drugs had they known the truth.

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Miller’s lies persuaded his customers to part with their money, and they received

an inferior (and dangerous) product in exchange.

2. The district court delivered appropriate jury instructions concerning

the elements of mail and wire fraud. Miller’s proposed instructions were

inaccurate and misleading, as they (a) misstated the intent requirement by asserting

that the government must prove that Miller intended for his victims to suffer

ultimate (rather than immediate) monetary loss; (b) confused the term “scheme to

defraud” by charging the jury with determining whether Miller intended harm to

the alleged victim’s “property interests,” when the law requires only a showing that

the object of a scheme to defraud was to obtain money or property from a victim;

and (c) impermissibly expand the materiality requirement without, as Miller

concedes, any basis in law.

3. The district court correctly concluded that the government produced

sufficient evidence to establish that the enterprise charged in the indictment

existed, and that Miller was associated with it and agreed to participate in it. The

government’s focus on Miller’s and MIC’s role in that enterprise during its closing

statement was a natural result of Miller and MIC being on trial after dozens of

other defendants pled guilty. The government’s closing argument did not

constructively amend, or prejudicially vary from, the enterprise or conspiracy

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alleged in the indictment by highlighting Miller’s and MIC’s role in that broader

enterprise.

ARGUMENT

I. THE EVIDENCE BEFORE THE JURY WAS SUFFICIENT TO

CONVICT MILLER OF EACH OF THE MAIL AND WIRE FRAUD
OFFENSES ALLEGED IN THE INDICTMENT

A. Standard of review

On an appeal challenging the sufficiency of evidence, this Court must

evaluate the trial evidence “‘in the light most favorable to the prosecution,’ and

only then determine whether ‘any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” United States v.

Nevils, 598 F.3d 1158, 1191 (9th Cir. 2010) (en banc) (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)).

B. Miller intended to defraud pharmacists of a traditional property

interest—money

At trial, the government proved that Miller’s goal was simple: to obtain

money from pharmacists by falsely claiming that MIC was selling drugs that had

traveled through a trusted and regulated supply chain. This case thus presents a

classic fraud: Miller lied about the nature of the products he was selling in order to

make money. Miller thus lied in order to impair the property interests of his

victims; he lied to get their money.

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1. “Right to information” cases have no bearing on this simple

property fraud case

Miller’s attempt on appeal to recategorize the nature of the fraud as

something more complex should be rejected. Ciminelli and United States v.

Bruchhausen, 977 F.2d 464 (9th Cir. 1992), upon which Miller relies heavily,

simply have no bearing on such a classic fraud case, as neither concerns a

defendant who lied about the nature of the product he was selling. As the district

court below rightly concluded, “the government’s theory was that of classic, run-

of-the-mill fraud: that Miller and MIC knowingly deceived pharmacies and

distributors into paying for drugs from trusted and regulated sources but gave than

an inferior product—diverted drugs that were not safely stored—in return.” 1-ER-

8. This Court should affirm for the same reasons.

Miller’s argument on appeal relies on a misstatement of the facts, and pivots

from that misstatement to a line of cases that have no bearing on this matter.

Miller lied about a vital aspect of the products he was selling, not merely about

some ancillary detail—namely, the assurance that the victims were obtaining

effective, safe drugs that had gone through a supply chain designed to ensure their

efficacy. See 1-ER-9 (“[A]n important characteristic of these drugs was

misrepresented to the customers at the time of sale: the drugs’ source.”). The facts

recounted above demonstrate that the victims of Miller’s scheme were paying for a

particular product with a particular risk profile—prescription drugs protected by

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the multi-layer state and federal regulatory scheme. Instead, they received a

different product—bottles from unlicensed and unknown sources, stored in

unknown ways, vulnerable to tampering, and with a track record of containing the

wrong drug in the bottle. The products received were undoubtedly far riskier to the

health of patients than were the products the victims intended to buy. It is no

wonder that pharmacists would have refused to buy Miller’s drugs had they known

the truth: pharmacists are not in the business of exposing their patients to

unnecessary risk.

Miller’s argument on appeal—that the lies went simply to information

ancillary to the transactions, rather than to the nature of his products—allows him

to pivot to a series of cases that have no bearing on these facts. For example,

Miller relies heavily on Bruchhausen, 977 F.2d 464, and United States v. Sadler,

750 F.3d 585 (6th Cir. 2014). But neither case concerns a defendant who

misrepresented the nature of the products he was selling. On the contrary, in both

cases the fraud theory targeted lies told by the purchaser, not by the seller. In

Bruchhausen, the defendant was a purchaser of American technology who lied to

the seller about how he intended to use the products he bought. 977 F.2d at 467.

In Sadler, the defendant lied to her prescription drug suppliers about her identity

and about how she intended to use her purchases. 750 F.3d at 590. Neither case

concerned a seller who lied about the nature of what he was selling. Neither case

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concerned victims who believed they were purchasing goods of a particular

quality, but who unwittingly received goods of a lesser quality.

Indeed, Bruchhausen and Sadler relate to an entirely different category of

frauds in which the theory is that the victim was deprived not of money—as

Miller’s victims were—but of some intangible right to accurate information. In

Bruchhausen, the government alleged that the defendant defrauded American

manufacturers of “their right to make business decisions based on truthful

information and representations,” and the government of its “right to conduct [its]

affairs free from stealth, chicanery, fraud, false statements and deceit.” 977 F.2d at

467. There was no contention, as there is in this case, that the products sold

differed from the seller’s representations, nor that the buyer misrepresented the

nature of the payment offered. Instead, the issue was “control over the destination

of [the victims’] products after sale.” Id. at 467. To that end, the Court found that

the right to have truthful information in making business decisions, and to conduct

business free from deceit, was not the type of interest that the wire fraud statute

contemplated, and was thus not “property” within the meaning of the wire fraud

statute. Id. at 468–69. Sadler was similar, in that the Court concluded that “the

right to accurate information” did not constitute property under the mail and wire

fraud statutes. 750 F.3d at 591–92.

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But Miller’s scheme did not hinge on a seller’s interest in accurate

information. On the contrary, Miller sought and obtained money from pharmacies

by lying about the nature of the drugs he sold to them. A scheme in which money

is “an ‘object of the fraud’” is precisely the sort of conduct that the wire and mail

fraud statutes proscribe.5 Ciminelli, 598 U.S. at 312 (quoting Kelly v. United

States, 140 S. Ct. 1565, 1571 (2020)); see also Pasquantino v. United States, 544

U.S. 349, 355 (2005). Indeed, the Supreme Court has consistently held that “it is

unmistakable that the [wire and mail fraud] statute[s] reach[] false promises and

misrepresentations as to the future as well as other frauds involving money or

property.” Cleveland v. United States, 531 U.S. 12, 26 (2000) (quoting McNally v.

United States, 483 U.S. at 359).

Miller’s attempt to transpose the holdings in Bruchhausen and Sadler to this

case leads to absurd results. As noted above, both Bruchhausen and Sadler

concerned purchasers who were accused to defrauding their suppliers. The courts

in both cases observed that the supplier was paid for its products, and the purchaser

received the products it had bargained for. In the words of the Sadler court,

“paying the going rate for a product does not square with the conventional

understanding of ‘deprive.’” 750 F.3d at 590. But as noted repeatedly above, that

5
The mail and wire fraud statutes are frequently construed in kind because of their
common purposes, origins, and construction. See, e.g., Carpenter v. United States,
484 U.S. 19, 25 (1987).

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is not what happened here. Pharmacies thought they were purchasing legitimate

drugs, but instead they were purchasing diverted drugs. The victims were

therefore duped into purchasing products they did not intend to purchase because

they intended to purchase effective, safe drugs, and the sourcing impacted that.

Miller is thus forced to adapt his argument to look further down the chain of

transactions, arguing that because Miller’s victims were compensated when they

dispensed the drugs to their patients, that Miller must not have intended to harm

their property interests. But this contention—that a defendant cannot defraud a

victim if he intends that they will be reimbursed—has been repeatedly rejected by

this and other courts, and it illustrates why the holdings of Bruchhausen and Sadler

have no place here. The Supreme Court itself has held that to establish an intent to

cheat, “the Government need not prove that the defendant intended that the

[victim] ultimately suffer monetary loss.” Shaw v. United States, 580 U.S. 63, 71-

72 (2016) (a bank fraud case). Miller attempts to distinguish Shaw, claiming that it

did not “intend[] to overrule its prior rulings in McNally, Cleveland, and

Pasquantino.” AOB-20.6 Indeed it did not, because those three cases have no

bearing on Shaw, where the property interest at issue is money. Instead, those

6
Even if Shaw were not on point, this Court has held repeatedly that “a good-faith
belief that the victim will be repaid and will sustain no loss is no defense at all.”
United States v. Molinaro, 11 F.3d 853, 863 (9th Cir. 1993) (quoting United States
v. Benny, 786 F.2d 1410, 1417 (9th Cir. 1986)).

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cases police the outer boundaries of what qualifies as a property interest, while

Shaw clarifies that where money is at issue, a defendant need not intend to cause

ultimate loss or harm.7 It is only Miller’s skewed reading of the law that appears to

create tension between these wholly distinct lines of cases.

As the district court aptly noted below, “this is a simple case.” 1-ER-34.

Miller and MIC claimed that they were selling safe, regulated drugs. They did this

thousands of times with the transmission of pedigrees that Miller knew were false.

Miller knew he was selling diverted drugs of unknown condition and unknown

provenance. Miller also knew that pharmacists would never purchase those drugs

had the pharmacists known the drugs were diverted. So he lied. Those

misrepresentations constituted wire and mail fraud because they were material in

causing pharmacists to pay for a product they did not want. Miller’s intent to

7
Kelly, widely known as the “Bridgegate case,” involved a scheme in which the
object of a fraud was not obtaining money or property, but to effect havoc on a
municipality through the exercise of regulatory authority to exact political revenge.
140 S. Ct. at 1572–73. The regulation of toll lanes, according to the Court, did not
implicate money or property within the meaning of the mail or wire fraud statutes.
Id. The reasoning in Kelly was drawn in large part from Cleveland, which
presented a similar issue: whether a state’s interest in revenue from gambling
licenses qualified as a property interest for purposes of the wire fraud statute. 531
U.S. at 23–25. The Court, again, determined that an interest in state revenue is not
a traditional property interest, but an interest in the exercise of a state’s regulatory
authority. Id. Both cases are among several in a line stemming from McNally,
which held that the mail and wire fraud statutes do not, on their own, criminalize
the failure to provide honest services, as honest services are not among the
traditional property rights protected by those statutes. 483 U.S. 350, 358-60.

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defraud these pharmacists of their money was clearly placed before the jury in the

form of emails to his employees and discussions with customers. See 1-ER-283–

93.

2. The evidence pertaining to the RICO conspiracy and money

laundering conspiracy counts supports Miller’s convictions

Miller asserts that because the government did not prove that he was guilty

of the mail and wire fraud counts, the RICO and money laundering conspiracy

counts necessarily fail because they both rely on the mail and wire fraud counts as

predicates for their viability. See AOB-22–23. Because the government presented

evidence beyond a reasonable doubt as to Miller’s intent to defraud with respect to

the mail and wire fraud counts, Miller’s argument fails. This Court should affirm

the district court’s denial of Miller’s motion for acquittal.

II. THE DISTRICT COURT CHARGED THE JURY WITH

APPROPRIATE INSTRUCTIONS THAT CORRECTLY STATED
THE LAW

Miller next argues that the jury was improperly instructed in a variety of

ways related to the various fraud counts. In effect, this argument mirrors his

sufficiency of the evidence argument, as it is animated by the same (incorrect)

theory that the government’s case was based on a “right to accurate information”

theory. Just as this argument fails as to the sufficient of the evidence, it fails as to

the jury instructions. The district court properly declined to give instructions that

Miller requested, which would have misstated controlling precedent and confused

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the jury. The instructions as given—which were taken from this Court’s model

instructions—were proper, and Miller’s challenge to them should be rejected.

A. Background

During trial, Miller filed his final revisions of proposed jury instructions on

January 16, 2023. CR-1817; 225-CR-101. The government filed its proposed jury

instructions on that same day, and filed a trial brief explaining its objections to the

defendant’s proposed jury instructions. CR-1826; 225-CR-108. The district court

heard argument from the parties at the charging conference on January 23, 2023, 1-

ER-67–94, before charging the jury with instructions at issue in this case the next

day. 9-ER-1857–84.

B. Standard of review

Criminal defendants have “a constitutional right to have the jury instructed

according to [their] theory of the case . . . provided the requested instruction is

supported by law and has some foundation in the evidence.” United States v.

Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011) (internal citations and

quotation marks omitted). This Court reviews objections to jury instructions de

novo when determining “whether the instructions given ‘accurately describe[] the

elements of the charged crime.’” United States v. Garcia, 729 F.3d 1171, 1175 (9th

Cir. 2013) (quoting United States v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007) (en

banc)). Questions as to whether an instruction “has some foundation in the

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evidence is reviewed for an abuse of discretion.” Marguet-Pillado, 648 F.3d at

1006 (internal citations and quotation marks omitted). “‘The district court has

broad discretion in formulating the instructions’ for both the elements and the

theory of the defense, and it ‘need not give an instruction in the precise language

proposed by the defendant.’” United States v. Anguiano-Morfin, 713 F.3d 1208,

1209–10 (9th Cir. 2013) (quoting United States v. Hayes, 794 F.2d 1348, 1351 (9th

Cir. 1986)).

C. Miller’s proposed instructions on intent and “purpose to harm”

were improper

At trial, Miller asked the district court to instruct the jury that, in order for

the jury to find a scheme or plan to defraud, “the government must prove beyond a

reasonable doubt that the scheme or plan, if completed as intended, would cause

harm to a property interest of the alleged victim.” 10-ER-2120. The district court

instead instructed, in line with this Court’s model instruction, that, “[t]o establish

the existence of a scheme or plan to defraud, the Government must prove beyond a

reasonable doubt that the object of the scheme was to obtain money or property

from the alleged victims.” 1-ER-54.

Miller also asked the district court to instruct the jury that, “[t]o prove an

intent to cheat, the government must establish that the defendant intended to cause

loss or other harm to the alleged victim’s money or property.” 10-ER-2124

(emphasis added). The district court did not issue that instruction. Instead, as to

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the necessary intent finding, the district court instructed that the jury must find that

the “[d]efendant acted with the intent to defraud; that is, with the intent to deceive

and cheat.” 9-ER-1875. Because both of Miller’s proposed instructions misstate

the law and would have confused the jury, and because the instructions as given

comport with the law, Miller’s argument should be rejected.

1. The “object” element

Miller first argues that the jury should have been instructed that in order for

the jury to find a scheme or plan to defraud, “the government must prove beyond a

reasonable doubt that the scheme or plan, if completed as intended, would cause

harm to a property interest of the alleged victim.” 10-ER-2120. He is correct, of

course, that fraud requires a finding that the object of a fraud scheme must be to

obtain money or property from the alleged victims. See, e.g., United States v.

Holden, 908 F.3d 395, 399–401 (9th Cir. 2018); United States v. Woods, 335 F.3d

993 (9th Cir. 2003). And the jury was so instructed. See 1-ER-54 (“To establish

the existence of a scheme or plan to defraud, the government must prove beyond a

reasonable doubt that the object of the scheme was to obtain money or property

from the alleged victims.”).

Miller’s preferred instruction, with the phrase “cause harm to a property

interest,” by contrast, is confusing. “Property interest” is not defined, and Miller’s

preferred instruction suggests that the government must prove ultimate financial

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injury. In other words, it suggests that if a victim is somehow made whole through

other means, then there is no ultimate “harm” and thus no crime. As discussed

above, that is not the law. “[A] good-faith belief that the victim will be repaid and

will sustain no loss is no defense at all.” United States v. Molinaro, 11 F.3d 853,

863 (9th Cir. 1993) (quoting United States v. Benny, 786 F.2d 1410, 1417 (9th Cir.

1986). The Supreme Court itself has held that “the Government need not prove

that the defendant intended that the [victim] ultimately suffer monetary loss.”

Shaw, 580 U.S. at 71–72.

2. The “intent” element

As for the necessary intent, the jury was instructed that the government must

prove beyond a reasonable doubt that the “[d]efendant acted with the intent to

defraud; that is, with the intent to deceive and cheat.” 9-ER-1875. This aligns

perfectly with this Court’s precedent, as the language is drawn directly from

United States v. Miller, 953 F.3d 1095, 1101 (9th Cir. 2020).

Miller, by contrast, proposed that the jury be instructed that “[t]o prove an

intent to cheat, the government must establish that the defendant intended to cause

loss or other harm to the alleged victim’s money or property.” 10-ER-2124

(emphasis added). Once again, Miller’s proposed instruction is inconsistent with

this Court’s law. There is no requirement that the government prove an ultimate

loss or harm to a victim. On the contrary, the requisite intent requires only proof

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of an intent “to deprive the victim of money or property by means of deception.”

Miller, 953 F.3d at 1103. The victim must intend to take money or property from

the victim—as Miller intended to dupe his victims into paying money for diverted

drugs—but the fact that the defendant hopes that the victim be ultimately repaid by

some downstream customer is irrelevant. Molinaro, 11 F.3d at 863.

Miller argues that the district court’s refusal to give his preferred instructions

“crippled the defense.” AOB-28. To the extent that is true, it is only because the

defense relied on a misreading of the law and an absurd view of the facts. Miller

argues that he “did not intent to cheat [the victims] out of money or property”

because he provided “high-quality prescription drugs at a better price than they

could obtain elsewhere—a price that allowed the pharmacies to sell the drugs at a

profit.” Id. First, the drugs were diverted; they were thus not high quality.

Indeed, as recounted above, sometimes they were not even the right drugs.

Second, the fact that the victim pharmacists later sold the drugs to their customers

is, once again, irrelevant. Molinaro, 11 F.3d at 863. Miller does not dispute that

the victims paid money in exchange for the drugs, which is all that is required

when the victims were also deceived about the nature of the transaction.

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D. Miller asked the district court to create a new, unsupported

“benefit of the bargain” requirement

Miller next asserts that the district court erred by not including his proposed

“benefit of the bargain” instruction. See AOB-31. Miller specifically requested

that the district court instruct the jury that

MIC customers who received the benefit of their bargain

suffered no deprivation of money or property under the
mail and wire fraud statutes, even if they purchased the
prescription drugs without all the information they
considered important to the purchasing decision, and
even if they would not have purchased prescription drugs
from MIC if they had known that information.

10-ER-2123. The district court correctly declined to so instruct the jury, which has

no support in this Court’s caselaw.

In support of this instruction, Miller cites extensively to two out-of-circuit

decisions: United States v. Guertin, 67 F.4th 445 (D.C. Cir. 2023), and United

States v. Takhalov, 827 F.3d 1307, 1314 (11th Cir. 2016). Although both cases

concern the general nature of bargains between defendants and victims, neither

case is on point.

Guertin involved a defendant who was a Foreign Service Officer in China.

67 F.4th at 448. While employed there, the defendant concealed several unsavory

activities in which he was involved in the course of his employment with the

Department of State, including developing romantic relationships with visa

applicants whose applications he was adjudicating; taking out loans; and incurring

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significant gambling debt. Id. The defendant was charged under the wire fraud

statute, and the thrust of the prosecution theory was that the defendant defrauded

the Department of State of his salary by concealing those activities to maintain his

top-secret security clearance, and by continuing to work and draw a salary as a

Foreign Service Officer. Id.

The D.C. Circuit concluded that the allegation in Guertin concerned honest

services fraud, which was not charged in the indictment. Id. at 450. The

defendant’s activity was not aimed at depriving the Department of State of money

or property; rather, the fraud was depriving the Department of State of its right to

the defendant’s honesty because the defendant continued to perform his job, lies

notwithstanding. Id. at 451. Guertin is fundamentally different from this case

because here, Miller’s and MIC’s salary is not at issue, nor are any victims’ rights

to Miller’s or MIC’s honesty. In Guertin, the defendant performed the work that

entitled him to a salary; Miller, on the other hand, did not provide the condition or

quality of drugs he promised to pharmacists, a standard fraud involving traditional

property interests.

Takhalov is inapposite for similar reasons. The defendants in Takhalov were

accused of hiring “women . . . to pose as tourists, locate visiting businessmen, and

lure them into the defendants’ bars and nightclubs” to purchase alcoholic

beverages. 827 F.3d at 1310. Once the purported victims entered the bar, the

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defendants argued that the “victims” were not misled or overcharged in any way,

but rather “got what they paid for—nothing more, nothing less.” Id. at 1311. The

misrepresentation, according to defendants, may have led the victims to the bar,

but it did not make them drink. Defendants therefore requested an instruction that

the failure to disclose the financial arrangement between the defendants and the

women “is not sufficient to convict a defendant of any offense.” Id. The district

court declined to do so, and the defendants were convicted.

The Eleventh Circuit reversed, holding that the “lies” in question, which

lured the victims into bars and nightclubs, did not relate to the nature of the

transactions that were charged as wire fraud, which occurred well downstream of

the misrepresentation. More specifically, the Eleventh Circuit held a scheme to

defraud “refers only to the nature of the bargain itself,” as opposed to some

antecedent event that may have been in the causal chain leading up to the

transaction. 827 F.3d at 1312. Of particular relevance here, the Takhalov court

specifically distinguished the facts of that case from traditional property fraud—

such as this case—in which a defendant “might lie about the characteristics of the

good.” Id. With misrepresentations as to the good, “the defendant has lied about

the nature of the bargain and thus . . . has committed wire fraud.” Id.

Both Takhalov and Guertin cite to a relevant passage from United States v.

Shellef, 507 F.3d 82, 108 (2d Cir. 2007), which provides the legal framework upon

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which both cases rely. In Shellef, the Second Circuit noted that there is “a fine line

between schemes that do no more than cause their victims to enter into transactions

that they would otherwise avoid—which do not violate the mail or wire fraud

statutes—and schemes that depend for their completion on a misrepresentation of

an essential element of the bargain—which do violate the mail and wire fraud

statutes.” Id. at 108. The nature of the drugs that Miller sold was an essential

element of the bargain, as several witnesses at trial testified. This case

fundamentally implicates an aspect of the transaction that, at its heart, was

foundational to each pharmacies’ decision to purchase drugs from MIC—that they

could be relied upon to have traveled through a regulated, safe stream of

commerce.

E. The “money and property” instruction that Miller requested

mischaracterized the nature of the scheme and would have
confused the jury

Miller also requested that the district court deliver two additional

instructions to the jury that would have improperly characterized the evidence

concerning the nature of the property at issue in the trial. Specifically, Miller

requested that the district court instruct the jury that “[a]ccurate information about

the source of the prescription drugs MIC sold to its customers does not constitute

property under the mail and wire fraud statutes,” and that “[t]he right of MIC’s

customers to information they considered important in deciding whether to

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purchase prescription drugs from MIC, including information about the source of

the prescription drugs, does not constitute property under the mail and wire fraud

statutes.” 10-ER-2121–22.

The district court correctly concluded that there was no evidence in the

record that the property interest at stake in the trial was information concerning the

actual provenance of the drugs MIC sold. Rather, the evidence concerned the

money that MIC obtained from pharmacists in exchange for drugs that MIC

claimed were legitimate but were actually diverted. 1-ER-11–12. Miller concedes

that point, noting “[t]he government did not argue explicitly that the ‘money or

property’ at issue was information about the source of the drugs.” AOB-35.

Miller argues that the government nevertheless “told the jury repeatedly that

the pharmacies would not have purchased from MIC if they had known that the

pedigrees were false.” Id. Miller contends that the government pointing out this

particular aspect of the fraud may have allowed the jury to consider the

information as a property interest for purposes of the mail and wire fraud statutes,

which would be impermissible under Bruchhausen and Ciminelli. Id. But the

points from closing argument that Miller cites do not support his argument. In its

closing, for example, the government argued that Miller “deceiv[ed] and cheat[ed]

the pharmacies purchasing those drugs about the source of those drugs and the

origin of those drugs and, therefore, induc[ed] those customers to part with their

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money for the drugs that they wouldn’t have purchased otherwise.” 9-ER-1886.

That language is explicit—it assured that the jury knew the property at issue was

not some ethereal right to truthful information, but simply the money pharmacists

paid to Miller and MIC.

Similar language permeated the government’s argument. For example, the

government argued that MIC’s customers “would not have purchased prescription

drugs from MIC had they known that the suppliers were not licensed, that the

pedigrees contained false information, and essentially that the supply chain had

been corrupted. They wouldn’t have bought those drugs.” 9-ER-1890–91. Again,

the government argued that the pharmacies parted with money because Miller and

MIC represented the drugs had traveled through a regulated supply chain when, in

fact, they had not. Indeed, the government argued that “the point is that the

pharmacy owners, the customers cared, and they wouldn’t have purchased [the

drugs] had they known.” 9-ER-1909.

Given those arguments, there were no factual grounds upon which the

district court could have provided Miller’s requested jury instructions concerning

money and property. Instead, the district court gave this Circuit’s Model Criminal

Instructions as to the elements of mail and wire fraud, as this case presented a

fraud scheme involving the most traditional property interest: money. The district

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court’s refusal to give such an instruction does not constitute an abuse of

discretion. See Marguet-Pillado, 648 F.3d at 1006.

F. This Court has approved the district court’s materiality

instruction, and Miller’s proposed revision was unsupported

Miller also asked the district court to vary from the well-established Ninth

Circuit formulation of the materiality requirement. In particular, he asked that the

jury be instructed that a representation is material only if it “goes to the very

essence of the bargain between MIC and its customer.” 10-ER-2125. Such an

instruction is flatly inconsistent with Ninth Circuit precedent. See United States v.

Lindsay, 850 F.3d 1009, 1013 (9th Cir. 2017) (“In general, a false statement is

material if it has a natural tendency to influence, or is capable of influencing, the

decision of the decisionmaking body to which it was addressed.” (citations

omitted)). Miller looks for support not to any opinion or statute, but to a brief the

government filed in Ciminelli. But as the district court noted below, Ciminelli had

no bearing on the applicable materiality standard in mail or wire fraud cases;

indeed, “[t]he words ‘material’ and ‘materiality’ are not even found in the

opinion.” 1-ER-12 (citing Ciminelli, 598 U.S. 306). Additionally, this case does

not involve a fraud in the inducement. As explained above, this case does not

involve only the false information that was conveyed through the pedigrees the

pharmacies received, but also the receipt of a product that the pharmacies did not

pay for—diverted drugs—as opposed to drugs pharmacists were assured were

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transported through the regulated supply chain. Miller’s attempt to characterize

this case as a fraud in the inducement simply does not align with the evidence at

trial. Thus, even if Ciminelli had adopted the higher standard of materiality Miller

seeks, it would be inapplicable here.

In addition to Miller’s requested instructions not having any basis in the law

or evidence, the language Miller requested was confusing. The phrase “benefit of

the bargain” was, and remains, undefined and invites unstructured jury speculation.

Even worse is the phrase “very essence of the bargain.” It is not obvious that a

bargain even has an “essence,” and there is no way to ensure that a jury would

know how to identify it. Rather than confuse the jury with newly minted and

confusing terms, the district court gave the jury instructions that accurately

reflected the law and the evidence at trial. There is thus no error in the district

court’s instructions as to materiality.

III. THE EVIDENCE AT TRIAL ESTABLISHED THAT MILLER

CONSPIRED TO COMMIT RACKETEERING ACTS AS PART OF
THE ENTERPRISE CHARGED IN THE INDICTMENT

Miller next argues that this Court must reverse the district court’s order

denying his motion for a judgment of acquittal as to Count One, which charged

Miller with RICO Conspiracy in violation of 18 U.S.C. § 1962(d) (AOB-42). The

evidence at trial overwhelmingly established the existence of the enterprise

charged in the indictment, that Miller was employed by or associated with the

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enterprise, and that he conducted or participated in the affairs of the enterprise.

Moreover, the government’s closing argument did not constructively amend or

amount to a prejudicial variance from the indictment. This Court should affirm the

district court’s order denying Miller’s motion for a judgment of acquittal.

A. Standards of review

The same law concerning sufficiency of the evidence cited above applies

with equal force here. Specifically, this Court must evaluate the trial evidence “‘in

the light most favorable to the prosecution,’ and only then determine whether ‘any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” Nevils, 598 F.3d at 1191 (quoting Jackson, 443 U.S. at 319).

This Court reviews preserved claims of constructive amendment and

prejudicial variance below de novo. United States v. Davis, 854 F.3d 601, 603 (9th

Cir. 2017) (quoting United States v. Adamson, 291 F.3d 606, 615 (9th Cir. 2002)).

B. The record overwhelmingly proves the existence of the enterprise

charged in the indictment

Count One of the indictment alleged that the individual defendants named

therein, along with dozens of others, “constituted an ongoing organization whose

members functioned as a continuing unit for a common purpose of achieving the

objects of the enterprise.” 10-ER-2293. The indictment labeled the enterprise as

the “Karapedyan-Stepanyan Enterprise,” and described it as a “group of

individuals and entities associated in fact” pursuant to 18 U.S.C. § 1961(4). Id.

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The “Karapedyan-Stepanyan Enterprise” is reflective of some of the defendants

who were associated with, and participated in, the enterprise.

To prove the existence of an “associated-in-fact enterprise,” the government

must show that that “a group of persons associated together for a common purpose

of engaging in a course of conduct.” Boyle v. United States, 556 U.S. 938, 946

(2009). That group of persons must have “a purpose, relationships among those

associated with the enterprise, and longevity sufficient to permit these associates to

pursue the enterprise’s purpose.” Id. Those requirements notwithstanding, the

enterprise element for purposes of RICO is, generally speaking, “not very

demanding.” United States v. Christensen, 828 F.3d 763, 780 (9th Cir. 2015)

(quoting Odom v. Microsoft Corp., 486 F.3d 541, 548 (9th Cir. 2007) (en banc)).

To that end, an enterprise need not have a “hierarchy,” “role definition,” a “chain

of command,” or an “internal discipline mechanism” to qualify as an enterprise.

Boyle, 556 U.S. at 947.

The RICO statute should be “liberally construed to effectuate its remedial

purposes.” Boyle, 556 U.S. at 944–45 (citations omitted). Courts have accordingly

held that, when RICO conspiracy is alleged in an indictment, the government need

not show that co-conspirators know one another’s role in the enterprise. Rather,

the government need only prove that the co-conspirators were “aware of the

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‘essential nature and scope’ of that enterprise and intended to participate in it.”

Christensen, 828 F.3d at 781.

The enterprise in this case was alleged to have multiple purposes, including

“[o]btaining profits and property for its members and associates through the

commission of criminal acts, including, but not limited to, . . . mail, wire, and bank

fraud, the unlicensed wholesale distribution of drugs, and money laundering.” 10-

ER-2293–94. The indictment also alleged that the co-conspirators engaged in

various means and methods through which they conducted and participated in the

conduct of the affairs of the enterprise, including “creat[ing] shell businesses to

engage in the sale of improperly procured and handled drugs,” “creat[ing] false

drug pedigree information that they sent to customers via mail or email and posted

on a web site to facilitate their sales of improperly procured and handled drugs,”

and “creat[ing] documents containing false information, such as fraudulent

invoices, false contracts, and other fraudulent business records . . . .” 10-ER-2294.

Miller disputes the sufficiency of the evidence concerning the existence of

the Karapedyan-Stepanyan Enterprise as alleged in the indictment, and he argues

that there was no “common purpose” or “ongoing organization” among the

members of the enterprise. But the evidence at trial clearly established that the

enterprise alleged in the indictment not only existed, but thrived—and that Miller

interacted with a variety of different suppliers, clerical employees, and middlemen

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to further the goal of “[o]btaining profits and property . . . through the commission

of . . . mail [and] wire . . . fraud, the unlicensed wholesale distribution of drugs,

and money laundering.” 10-ER-2293.

The evidence at trial specifically established a multi-tier enterprise with mid-

level suppliers like Karapedyan (who obtained drugs from street suppliers) who

sold diverted drugs to higher-level suppliers like the Stepanyans (Miller’s largest

suppliers), who then used Miller’s operation to access the lucrative prescription

drug market. An undercover law enforcement witness, for example, testified in

depth about the nature of the organization, including how one alleged co-

conspirator—co-defendant Arman Danielian—explained that the enterprise was

structured to avoid scrutiny from law enforcement and to have a readymade “fall-

guy” in the event law enforcement grew suspicious. 5-ER-992–96. Karapedyan,

for his part, testified that while he did not deal directly with the Stepanyans, it was

his understanding that the Stepanyans were the ultimate purchasers of the drugs he

was selling, indicating his association with a larger group of individuals whose

drugs were ultimately used to enrich Miller and MIC. 6-ER-1089–90.

Other witnesses at trial testified about the purpose of the enterprise, as well

as how the different members of the enterprise related to one another. Kats, for

example, testified as to his role as one of the sources for MIC’s drug supply. Kats

came into contact with Miller based on his understanding that Miller would

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purchase drugs from him. 4-ER-630–31. The drugs that Kats could supply,

however, came from individuals, not established drug wholesalers. 4-ER-630–33.

Indeed, Kats explained his role in the process by stating that he would obtain drugs

in “[d]ifferent ways from people on the street. Let’s say you’re 50 years old or 60

years old. You go to the doctor. He prescribes something for you. You don’t take

it. The pharmacy keeps it, sells it to somebody. They sell it to me. I sell it to

David.” 4-ER-636. To further his business with Kats, Miller taught him how to

open a company and avoid regulatory scrutiny, with Miller assuring Kats that he

was an attorney and knew what he was doing, all while knowing that the two were

dealing in diverted pharmaceuticals. 4-ER-636–41, 4-ER-650–51. Miller also

worked with Kats and his own employees to find bottles of drugs that looked as

though they had not been tampered with—with no residue, medical inserts still

present, and no indication that someone else had been prescribed the drugs in the

bottle. 4-ER-652–53. Miller repeated this same exercise with David Konigsberg,

another one of Miller’s suppliers. 7-ER-1297–1326.

Miller also worked with suppliers like Kats to hide the source of the drugs

Kats sold to Miller, which MIC would later sell to unsuspecting pharmacies.

Indeed, Miller used the employees of MIC, such as Couch and Polichetti (both

named as co-conspirators in the indictment), in a methodical manner to take the

drugs that Kats and others obtained from the streets to hide their origins, such as by

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instructing his suppliers (like Kats) to falsely indicate that the pharmaceuticals had

been sourced from a well-known wholesaler. 4-ER-692–704.

After obtaining drugs, Miller’s employees worked with suppliers and

amongst themselves to process and organize them. Russo testified at length about

what he would do upon receiving drugs in Minnesota from the various suppliers

both directly and from B&Y in Puerto Rico; how he would conduct quality control

and otherwise prepare the drugs prior to shipment to pharmacies; and how he

worked with others at MIC in response to critical safety incidents involving drugs

MIC sold. See, e.g., 4-ER-731–33 (discussing Miller’s suppliers and how they

were never placed on pedigrees sent to pharmacy customers by MIC employees);

4-ER-741–44 (describing the role of B&Y and Yassin in transmitting orders from

suppliers like Galan and Kats from Puerto Rico to Minnesota prior to shipment of

drugs to pharmacy customers); 4-ER-747–50 (describing the role of Guillen and

Ramirez in quality control for the drugs MIC obtained from their suppliers, as well

as the issues that frequently arose when those drugs were inspected in Minnesota);

4-ER-764–66 (describing how B&Y was depicted as a purported authorized

distributor for nearly every drug MIC sold for years, despite Russo knowing that

they were not suppliers for the drugs MIC sold); 4-ER-769–70 (describing the MIC

employees, including Couch and Polichetti, who were responsible for generating

pedigrees for MIC’s customers). Russo’s testimony clearly established that the

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Stepanyans, who obtained drugs from individuals like Kats and Karapedyan, knew

who Russo was after the government filed the indictment, even though he had

never met them before. 4-ER-828–30. All of this evidence establishes that the

various members were related to one another in their activities, even if several of

them never formally met or met after the enterprise was charged.

Others in the enterprise worked with Miller and MIC to conceal the sources

of MIC’s drugs, especially Yassin and employees at B&Y, “who did whatever

David Miller asked [them] to do.” 8-ER-1584. Those requests did not include

actually obtaining drugs or, in several cases, even shipping them to MIC’s

Minnesota warehouse. 8-ER-1584–86. Others did, however, help Miller with the

distribution of diverted drugs. Soliman, for example, testified that he assisted

Miller by using his own businesses to assist Miller’s distribution of diverted drugs.

6-ER-1242–48. Miller worked with many of MIC’s employees to mail drugs from

suppliers in California to MIC’s operations elsewhere. Miller also specifically told

others in the enterprise, like Galan, to lie about the sources of drugs Miller

purchased. 5-ER-901–03.

The evidence clearly establishes that the individuals named in the RICO

conspiracy charge, including Miller, had relationships with one another, that they

shared a common purpose, and that Miller and his co-conspirators had sufficient

time to pursue the purpose of the enterprise. See Boyle, 556 U.S. at 946. In

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arguing that the government failed to prove that an enterprise existed, Miller

asserts that there was no ongoing enterprise or “any organization at all.” AOB-46.

Some of that argument appears to stem from the fact that several co-conspirators

did not know one another. Miller, however, cites no law indicating that an

enterprise requires every individual in a conspiracy to know each other. That is no

surprise, because RICO conspiracy has no such requirement. Cases like this one

demonstrate why: Miller’s relationship with individuals like Karapedyan was part

of a multi-layered organization and was maintained through individuals like the

Stepanyans. A structure like that utilized in the Karapedyan-Stepanyan Enterprise

enables its co-conspirators to evade detection from law enforcement. Even if

Miller did not personally know or ever meet Karapedyan, his activities were a

critical contribution to the success of Miller’s and MIC’s efforts.

That same evidence establishes that Miller was “employed by” or

“associated with” the enterprise. A defendant in a RICO conspiracy is “associated

with” an enterprise if they are “aware of the ‘essential nature and scope’ of that

enterprise and intended to participate in it.” Christensen, 828 F.3d at 781 (quoting

United States v. Fernandez, 388 F.2d 1199, 1230 (9th Cir. 2004)). To that end, “it

is sufficient that the defendant know the general nature of the enterprise and know

that the enterprise extends beyond his individual role.” Id. at 780 (quoting United

States v. Eufrasio, 935 F.2d 553, 577 n.29 (3d Cir. 1991)). Miller clearly knew

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that he was part of an enterprise that had, as its purpose, the goal of committing

criminal activity in an effort to derive profit from pharmaceutical drug diversion.

He also clearly knew and that he and others intended to, and did, participate in that

activity. Miller’s argument as to the element requiring a showing that he

“conducted or participated in” the enterprise fails for the same reasons. He was

deeply involved in the affairs of the enterprise; indeed, without him and MIC, there

would have been no profit to be made from any of his co-conspirators’ activities.

C. The government’s closing argument did not constructively amend

the second superseding indictment

Miller next asserts that, by focusing on his and MIC’s role in the enterprise

in government’s closing argument, the government constructively amended the

definition of the enterprise and, in turn, the indictment. See AOB-48. In the

alternative, Miller asserts the government’s argument amounted to a prejudicial

variance. Id. Both arguments fail.

“A constructive amendment to the indictment occurs ‘where . . . there is a

complex of facts presented at trial distinctly different from those set forth in the

charging instrument.’” United States v. Luong, 965 F.3d 973, 984 (9th Cir. 2020)

(quoting United States v. Hsiung, 778 F.3d 738, 757 (9th Cir. 2015)). It also

occurs when “the crime charged in the indictment was substantially altered at trial,

so that it is impossible to know whether the grand jury would have indicted for the

crime actually proved.” United States v. Bhagat, 436 F.3d 1140, 1145 (9th Cir.

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2006) (quoting Adamson, 291 F.3d at 612). A prejudicial variance occurs “if a

materially different set of facts from those alleged in the indictment is presented at

trial, and if that variance affects the defendant’s ‘substantial rights.’” Id. (quoting

Adamson, 291 F.3d at 615-16). Although constructive amendment mandates

reversal, a variance only requires reversal if it is prejudicial, i.e., it affects the

defendant’s substantial rights. Id. (citing Adamson, 291 F.3d at 615).

Miller claims that he and counsel structured a defense intended to address

the Karapedyan-Stepanyan Enterprise, which Miller characterizes as “a vast

criminal organization that included 56 people and entities engaged in a wide

variety of crimes.” AOB-51 (citing 10-ER-2292–96, ¶¶ 30-33). Miller contends

that, instead of proving the Karapedyan-Stepanyan Enterprise, the government set

out to prove the “Miller-MIC Enterprise.” Id.

Miller’s argument amounts to confusing the difference between a label and a

definition. As noted above, the indictment laid out the purposes of the

Karapedyan-Stepanyan Enterprise, which included, among other things,

“[o]btaining profits and property for its members and associates through the

commission of criminal acts, including, but not limited to, . . . mail, wire, and bank

fraud, the unlicensed wholesale distribution of drugs, and money laundering.” 10-

ER-2293–94. The indictment also alleged that the co-conspirators engaged in

various means and methods through which they conducted and participated in the

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conduct of the affairs of the enterprise, including “creat[ing] shell businesses to

engage in the sale of improperly procured and handled drugs,” “creat[ing] false

drug pedigree information that they sent to customers via mail or email and posted

on a web site to facilitate their sales of improperly procured and handled drugs,”

and “creat[ing] documents containing false information, such as fraudulent

invoices, false contracts, and other fraudulent business records . . . .” 10-ER-2294.

This language comports with the government’s depiction of the enterprise

throughout trial. The evidence established that Miller, MIC, and MIC’s employees

all engaged in the activities alleged in the indictment alongside other members of

the enterprise, including Kats, the Stepanyans, Karapedyan, Soliman, and others.

That the evidence at trial focused on Miller’s and MIC’s roles in the enterprise “is

understandable, given that Miller and MIC, not Karapedyan and Stepanyan, were

on trial.” 1-ER-30. This focus does not suddenly turn the enterprise alleged in the

indictment into an entirely different enterprise; rather, the government’s closing

focused on Miller’s and MIC’s roles as the means through which Miller and his co-

conspirators realized profit, as that is exactly the role that Miller and MIC played.

Miller’s attempt to cast the government’s focus on his and MIC’s roles in the

enterprise as an attempt to redefine the enterprise as alleged is, essentially, an

argument that the government erred by not focusing on every single aspect of the

enterprise at trial. The government’s narrow focus, more than anything, helped

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Miller at trial—had the government presented evidence as to every aspect of

enterprise at trial, the government would have presented evidence of the various

other crimes charged in the indictment, including charges related to a check-

cashing scheme and a murder for hire. See 10-ER-2287–90, 2292. Regardless, the

indictment’s references to “[o]btaining profits and property for its members and

associates through the commission of criminal acts, including, but not limited to, . .

. mail, wire, and bank fraud, the unlicensed wholesale distribution of drugs, and

money laundering,” “creat[ing] shell businesses to engage in the sale of improperly

procured and handled drugs,” “creat[ing] false drug pedigree information that they

sent to customers via mail or email and posted on a web site to facilitate their sales

of improperly procured and handled drugs,” and “creat[ing] documents containing

false information, such as fraudulent invoices, false contracts, and other fraudulent

business records” all gave Miller fair notice of the government’s accusations. 10-

ER-2293–94.

This case differs significantly from United States v. Weissman, 899 F.2d

1111 (11th Cir. 1990), which Miller cites extensively on appeal. AOB-48, 52. In

Weissman, the Eleventh Circuit reversed a conviction in which the jury was told

that the name of a crime family, whose name was used to define the enterprise in

the indictment in that case, was not synonymous with the term “enterprise.”

Weissman, 899 F.2d at 1115. Here, neither Karapedyan nor the Stepanyans, nor

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their respective families, are defined as the entirety of the enterprise. Rather,

Miller was given fair notice that he was alleged to be part of a larger, more

sprawling group of people who were all working towards making money from

diverted drugs, and that is exactly what the government proved at trial. See

Hsiung, 778 F.3d at 758 (explaining that, when an indictment’s allegation gives a

defendant fair notice of the evidence the defendant actually faces at trial, there is

no constructive amendment of that indictment). Unlike in Weissman, there is no

evidence that the government’s closing argument “induced [Miller] to prepare a

defense that would be insufficient to ward off the government’s proof at trial.”

United States v. Ryan, 283 F. App’x 479, 482 (9th Cir. 2008).

That notice is, at bottom, what animates concerns regarding constructive

amendments and prejudicial variances. Miller received ample notice of the

evidence the government would, and did, produce at trial. The government’s focus

on Miller’s and MIC’s role within the Karapedyan-Stepanyan Enterprise was

neither a constructive amendment of, nor a prejudicial variance from, Count One

of the indictment. The Court should accordingly affirm the district court’s order

denying Miller’s motion for a judgment of acquittal.

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CONCLUSION

For the foregoing reasons, this Court should affirm.

Dated: May 17, 2024 Respectfully submitted,

ISMAIL J. RAMSEY
United States Attorney

MERRY JEAN CHAN

Chief, Appellate Section, Criminal Division

/s/ Chris Kaltsas

ANDREW F. DAWSON
CHRIS KALTSAS
Assistant United States Attorneys

Attorneys for Respondent-Appellee

UNITED STATES OF AMERICA

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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RULE 28-2.6

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The undersigned attorney or self-represented party states the following:

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Signature s/ Chris Kaltsas Date 5/17/2024

(use “s/[typed name]” to sign electronically-filed documents)

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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29-2(c)(2), or Cir. R. 29-2(c)(3).

[ ] is for a death penalty case and complies with the word limit of Cir. R. 32-4.

[ ] complies with the longer length limit permitted by Cir. R. 32-2(b) because (select
only one):

[ ] it is a joint brief submitted by separately represented parties.

[ ] a party or parties are filing a single brief in response to multiple briefs.

[ ] a party or parties are filing a single brief in response to a longer joint brief.

[ ] complies with the length limit designated by court order dated _____________.

[ ] is accompanied by a motion to file a longer brief pursuant to Cir. R. 32-2(a).

Signature s/ Chris Kaltsas Date 5/17/2024

(use “s/[typed name]” to sign electronically-filed documents)

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